E-ZPass records offer key evidence

Sunday

Apr 19, 2009 at 2:00 AM

OLIVER MACKSON and JEREMIAH HORRIGAN

Since 2005, the New York State Thruway Authority has rejected roughly half the subpoenas it's received from law enforcement authorities, like the one seeking information about the movements of Michael Mele, the Orange County man last seen with missing Brooklynite Laura Garza.

Sources familiar with the Garza investigation said state police were dismayed, to put it mildly, by the Thruway Authority's rejection of a subpoena seeking information gathered by E-ZPass, the electronic toll system used by New York and several other states to improve traffic flow on toll roads and at tunnels.

Police eventually got the information they were seeking, but they had to resort to getting a search warrant from a judge that allowed investigators to search the Authority's Albany headquarters in January.

Search warrants require supporting affidavits that can eventually become public, or can provide strategic clues when they're turned over to the defense as part of the pre-trial discovery process. Subpoenas don't require the same kind of disclosure.

The Thruway Authority didn't respond to requests by the Times Herald-Record to identify some of the factors that would cause it to reject a subpoena or written request for E-ZPass records.

Statistics on the number of search warrants executed on Thruway Authority property were also unavailable.

But an analysis by the authority in response to a request by the Record reveals that the rejection of the subpoena in the Garza investigation was not uncommon.

From 2005 through the first eight months of 2008, the authority received a total of 394 criminal and civil subpoenas and provided information in response to 217 of them.

Capt. Wayne Olson, the state police supervisor who has oversight of the search for Garza, declined to discuss specifics of the state police interaction with the Thruway Authority in the Garza case.

But in general, when it comes to E-ZPass, "it's a helpful law enforcement tool, because timelines are very important in establishing where an individual has been. In some cases, it could help tell if a person was in proximity to the scene of a crime."

Timelines have been especially important in the search for Garza, because Mele, the Orange County sex offender who was last seen with her leaving a New York City nightclub, has declined to tell investigators what he knows about her disappearance.

There's also a dearth of physical evidence about her whereabouts, as well as evidence that would show if she was attacked while she was in Mele's SUV.

The Thruway Authority's record-keeping played a crucial role in solving one of upstate New York's most notorious murders: the 2004 slaying of Peter Porco, a prominent Albany-area lawyer, and the attempted murder of his wife, Joan. The case was tried in Orange County Court because of intense pre-trial publicity, and in his closing argument, Albany County Assistant District Attorney Michael P. McDermott used toll records to help show the timeline for Christopher Porco's travels on the Thruway.

In that case, Porco's E-ZPass transponder had been disabled, but investigators obtained surveillance camera photos of his vehicle at toll plazas, sifted through tickets and found DNA consistent with Porco's on one of them.

"Between the E-ZPass record and the toll ticket records, my experience with the Thruway Authority is that they keep meticulous records," McDermott said, "and they really safeguard those records. They're just like Wal-Mart — they keep track of every penny."

The balance between privacy rights and the needs of law enforcement is constantly debated in legal circles. The New York Civil Liberties Union has raised a red flag about the prospect of thousands of drivers having their movements tracked if tolls are installed on the bridges that connect Brooklyn and Queens with Manhattan.

In 2007, the NYCLU proposed "anonymous E-ZPass accounts" that could allow drivers to enter and leave Manhattan without becoming part of a government-operated database.

McDermott, who's now in private practice, doesn't buy that kind of argument.

"It's impossible to get off the grid. If you use E-ZPass, if you use a cell phone, if you use an ATM, you've got a cyber-footprint all over the place. You're just using the marketplace, and all those records are subject to subpoena."